It is time we hold Israel accountable for its misdeeds because no country can be above the law

Part II

It is important to mention that the urgent application put before the ICJ by South Africa is not necessarily a concrete decision on the guilt or innocence of Israel with regards to its violations of the genocide convention but an injunction to immediately halt hostilities so as to create conditions conducive for peace talks, allowing the exchange of hostages, permitting humanitarian aid to enter the war zone, to allow food, water and medicines to enter the Gaza strip immediately and without delays.  This is what the urgent application is about.  The court could of course agree to the urgent application after the two parties have stated their respective cases knowing full well the implications for the larger case of genocide is still a very long way off. The actual determination on whether this is a genocide will still have to follow extensive investigations, collection of evidence, summoning numerous individuals no doubt and much much more.

South Africa will draw on Levy’s “cliches”, and position itself as opposing the Israeli occupation of occupied territories. South Africa will spend significant time providing evidence of ‘intent’ for genocide (while not arguing the substance of whether it is in fact acting genocidally. Israel will position itself as the long standing historic victim of global violence, and require means to defend itself. Ultimately the decision made will be a political lens through which the majority of judges view the situation.

While we wish for the contrary, legal matters of this sort are rarely based on interpretation of evidence, instead decisions will be based neither on legality or morality buton politics. Which political framing receives the greatest support will determine the ICJs outcome.  One could of course analyse in detail how one thinks the independent judges on the bench of the ICJ will vote on this matter considering their respective countries’ narrow national interests but I think this would not be helpful.  Considering the implications of their decision for the future of the court and the future of the UN conventions is a much more important matter to have uppermost in one’s mind. I don’t hold my breath for a South African win.

So, rather than dwell on the case and its merits (of which there will be much analysis this week) I rather consider the consequences – what is to be gained and lost – by South Africa bringing the case to the “World Court” in the first place.

The first consequence is about historic precedence and a matter for the historic record. By bringing this application to the ICJ South Africa has placed the western settler colonial project on trial for the very first time. It would be remiss of the court not to fully appreciate the consequences of its final decision in this regard.As a scholar of international relations I have spent time (evident in both my Master thesis as well as my PhD), on the concept of ‘dualism’within our international system.  Two worlds exist always: the collective West or global North and the global South.  The north being by and large rich and powerful whilst the south is relatively poor and not so powerful.  For a long time now, but made more pronounced after World WarTwo, a global architecture was put in place and agreed upon that favours the North as opposed to the South.  Though rules, laws and regulations exist, these are never equally applied between these two poles.  International institutions also demonstrate dualism with applications of apparently universal laws being applied inconsistently.  We need to just invoke the importance of observing all the time how the veto vote is used at the UNSC to ensure that what the North wants, it gets.  This is often done regardless of violations of international law.

There exist countless examples of these types of violations, whether it be international law, international humanitarian law, trade law and of course, war.  This phenomenon of dualism exists in all the Bretton woods institutions as well.  For example, we have seen the speed with which the Prosecutor of the ICC moved against President Putin from Russia but found all manner of excuses when it came to Israel and its blatant atrocities in Gaza and the West Bank in Palestine.  The dragging of the ICC’s feet when it comes to investigating war crimes being committed by both Israel and the USA as opposed to the prosecutions of African leaders is another case in point.Again, the inertia on the part of the UN general assembly is yet another suchexample.I fear we might perhaps see, yet again, this dualism rearing its ugly head when it comes to a decision by the ICJ judges to reject South Africa’s application. This rejection may be both the matter of an immediate injunction calling for a cease fire and the halting of hostilities as well as in the larger case brought against Israel, that of contravening the Genocide convention under the UN charter.  The court will no doubt also talk of the principle of “self-defence” and the fact that Israel has such rights.  This scenario holds true if indeed the judges will succumb to the pressures of the day from their respective governments.

The second consequence will depend on the outcome from the ICJ. Let me put it plainly to you, if the court should rule against the South Africa application it would imply that it does not see merit in the broader application of genocide violations. This, in turn, will mean a free pass for the Netanyahu administration to do whatever they want to do, including but not limited to driving all the citizens of Gaza into the Sinai desert and other neighbouring countries in the region.  With the death toll already being so high including that of women and children, Israel will not hesitate to completely and comprehensively execute its ethnic cleansing operation as stated in a confidential Israeli Intelligence report.  It will also effectively mean setting back the Palestinian cause for freedom for decades.  Israel will be able to get away with anything henceforth.

Another devastating consequence of a decision against South Africa would almost certainly mean that the entire global south would lose complete confidence in the so called “international rules-based order” because it would effectively mean that whatever the global north do, their global institutions that serve their interests will always be there to protect them and not us.

Dr . Oscar Van Heerden

Scholar of International Relation IR

This article will also appear in News 24, South Africa